Notwithstanding my railings on the current use of the NCLB waiver process and my suggestion that some waiver conditions are outside the scope of legislative authority, the issue remains complex and the opposing view worth considering. Earlier this year, David Barron and Todd Rakoff published In Defense of Big Waiver, 113 Columbia L. Rev. 265 (2013), which focuses on the constitutionality and virtues of the administrative waivers available under No Child Left Behind and the Affordable Care Act. The main thrust of the article is that, given the complexity of today's statutory and administrative state, the administrative waiver is nearly a necessity and something that works to both Congress and the Executive's advantage. Among other things, it helps Congress adapt laws to unforeseen circumstances and improves the political accountability of the executive branch. The abstract explains:

This Article examines the basic structure and theory of big waiver, its operation in various regulatory contexts, and its constitutional and policy implications. While delegation by Congress of the power to unmake the law it makes raises concerns, we conclude the emergence of big waiver represents a salutary development. By allowing Congress to take ownership of a detailed statutory regime--even one it knows may be waived--big waiver allows Congress to codify policy preferences it might otherwise be unwilling to enact. Furthermore, by enabling Congress to stipulate a baseline against which agencies' subsequent actions are measured, big waiver offers a sorely needed means by which Congress and the executive branch may overcome gridlock. And finally, in a world laden with federal statutes, big waiver provides Congress a valuable tool for freeing the exercise of new delegations of authority from prior constraints and updating legislative frameworks that have grown stale. We welcome this new phase of the administrative process.

The key question, however, is not whether the waiver is good policy (I believe I agree that it is), but whether it is constitutional. On this point, the tail seems to wag the dog in the article; good policy and practicalities motivate a favorable constitutional analysis. With that said, the article does give me serious pause in my initial conclusions about the constitutional issues. In this respect, the article is a success both in itself and for the administration.

A block quote of the conditional waiver analysis follows the jump.

2. Authority of the Agency To Create Criteria for Conditioning Waivers.--A distinct interpretive dimension concerns not the scope of the waiver authority but the criteria for its exercise. Waivers are often granted on conditions, and statutory provisions (such as the ACA provision just discussed) may well stipulate that waivers cannot be granted except upon conditions. The more power the agency has to establish the substantive criteria that will trigger its willingness to waive, the more authority it has to impose a new set of regulatory requirements in the course of “waiving” those on the books. The question thus arises how much authority grants of the waiver confer to set such criteria when the grants are not clear.

The choice of “waiver” as the mechanism given to the agency to exercise its judgment might be thought to signal a decision that the requirements as written by Congress are meant to be the most intrusive permitted. On this view, the agency would be authorized to move only in a deregulatory direction and thus would be barred from establishing new criteria that would have to be met in order for a waiver to be granted. But in a world of complex statutes, many of them containing elements that are meant not only to regulate but also to provide positive benefits, it is not so easy to tell up from down. What appears as a regulation to one of the affected parties may well appear to be the grant of a benefit to another. And, speaking more broadly, if one of the purposes of authorizing big waiver is to make room for new experiments and greater variety in fulfilling Congress's purposes, it is doubtful that those new ideas will be encompassed entirely within the idea of “dispensing with” requirements or “not availing oneself of” rights. The public law meaning of “waiver,” therefore, may well go beyond its private law eponym.

Yet, at least in the archetypal formulation, what the agency has is the power to “waive” requirements. Congress could have delegated the power to “revise” the statutory rules, or told the agency it could “refashion” the program--or, indeed, could have delegated the power to “regulate” the terrain as a whole--but Congress chose to say “waive.” It is hard to escape entirely from the linguistic implications, hard to avoid saying that the agency has to frame what it is doing in terms of identifying a specific piece of statutory language it is deeming no longer in effect. And yet, again, the very way in which the statutory requirements being waived were framed, and the very decision as to the breadth of things being considered to fall under the same rule, may reflect that initial understanding of the situation by Congress that the agency, properly, wants to supersede in the light of experience--a disposition that suggests the agency should have more than a binary power to either apply the rule as laid down by Congress or dispense with it altogether.

We conclude that Congress's choice of the mechanism of waiver, even big waiver, implies that the agency cannot simply dictate that a statutory provision has been waived and another set of requirements made mandatory instead. But where parties subject to the statutory requirements can choose between the waived and unwaived formulations, we think it is proper for an agency to condition its grant of a waiver on the recipients' being subject to new requirements not contained in the statute as originally written. This means, of course, germane new requirements relevant to Congress's purposes; this is not an authorization just to bargain for whatever the agency wants.

So, to return to the NCLB example, we do not believe the Secretary oversteps his bounds in specifying the kinds of programs states and localities should be undertaking to manifest the type of improvement that will count as a sufficient predicate for waiving the full proficiency requirement that Congress plainly made subject to waiver. Rather, in such a circumstance, the Secretary gives legitimate meaning to the grant of discretion to waive he has been afforded.

Indeed, in a real sense, it is through the specification of such criteria that the marriage between legislative specification and ongoing administrative expert assessment of new developments can occur. Otherwise, the administering agent is more like a mere adjudicator of the continuing validity of the congressional policy choice than a continuously responsible regulator of a field marked by Congress for ongoing consideration. It is more consonant with the positive reasons for Congress's granting big waiver in the first place to adopt the former point of view and read generously Congress's intent in granting a big waiver power--without going beyond the meaning the words will bear. But this is, of course, subject to the specific statute having addressed the issue more directly.